Ministerial Brief by the Premier, The Hon. Michael Dunkley, JP, MP
OVERVIEW OF THE BILL
The Bill before this Honourable House is the Police Amendment Act 2016. Mr. Speaker, Honourable Members will recall that when this Bill was tabled, I also introduced for the information of the House, the Police (Conduct) Orders 2016 and the Police (Performance) Orders 2016. This Bill compliments those Orders which are made by the Governor.
Mr. Speaker, in the 2015 Speech from the Throne this Government set out the rationale behind the amendments proposed today:
“The Police (Discipline) Orders 1975 are increasingly out-of-step with modern practices. There is also no effective framework to deal with long-term sickness of Police officers or a systemized process for managing the health and welfare of those officers and ensuring that they remain fit to serve.
The Government will introduce legislation to replace the old discipline process with a modern system that emphasizes performance improvement and learning, although serious cases that warrant formal proceedings will also be provided for. The new system will be more transparent and aligned with the principles of natural justice.”
Mr. Speaker, this Bill amends the Police Act 1974, the Police Complaints Authority Act 1998 and the Public Service Commission Regulations 2001. It also makes consequential amendments to the Public Service (delegation of Powers) regulations 2001. In general terms, these amendments are necessary to import relevant provisions of the respective Orders into the law and ensure that they are “on all fours” with the procedures established.
Whilst the Orders are tabled for information only, in an effort to inform Honourable Members I will provide a brief overview of the work done to date producing the Orders as well as an indication of some of the main provisions that will now govern how the Police manage conduct and discipline.
Mr. Speaker, the current framework is best described as a ‘blunt instrument’ designed to punish offenders who are found guilty of discipline offences rather than addressing unsatisfactory performance and misconduct. The current system is focused on keeping track of sickness rather than providing the means to more effectively manage attendance and monitor the welfare of police officers.
These challenges are not peculiar to Bermuda and in 2012, the Home Office in England introduced comprehensive guidance to cover the Standards of Professional Behaviour for police officers, including special constables, and set out the procedures for dealing with misconduct, unsatisfactory performance and attendance and for appeals to the Police Appeals Tribunal.
The procedures in that guidance are designed to accord with the principles of natural justice and the basic principles of fairness. The underpinning legislation (regulations) ensures that those principles are administered accordingly.
The guidance is issued in England by the Secretary of State under the authority of the Police Act 1996 which allows the Secretary of State to issue guidance as to the discharge of functions under regulations in relation to, among other things, the conduct, efficiency and effectiveness of police officers and the maintenance of discipline.
The Bermuda Police Service is closely aligned with the British policing model. Indeed much of our policies and training are very similar including firearms, public order, intelligence and tasking, forensic practices, tiered investigator standards and the use of the Service Decision Model. As a result, a decision was made to examine the Home Office guidance to determine if it could be adapted for use in Bermuda.
A Situational Assessment
Mr. Speaker, currently infractions in relation to unsatisfactory performance or misconduct are all dealt with under the Discipline Code. Where circumstances tend to disclose offences against discipline an investigator is appointed. At the conclusion of the investigation a decision is made whether to charge the officer and compel him to appear at a formal hearing presided over by a senior police officer. If the case is proven, the only outcomes for the officer are a range of punishments ranging from an admonishment to dismissal. Often the entire process is protracted and adversarial and the conclusion of a case, even for minor offences, often occurs long after the original incident. Thereafter appeals against conviction can be appealed to the Public Service Commission where there is often the added expense of legal counsel.
The current system does not help to improve behaviour and the system can prove stressful for all involved. Each discipline case is viewed in isolation and there is no mechanism for supervisors and line managers to formalize improvement goals and supervise action plans as part of the case management in support of the officer.
Additionally, Mr. Speaker, the current system of sick leave is unlimited and not directly linked to performance management and has resulted in unsatisfactory outcomes. Sometimes officers have embarked on long-term sick leave with very little opportunity for the BPS to formalize a return to work plan. In other cases there is inadequate follow-up with officers on sick leave which has resulted in officers feeling isolated, unsupported and undervalued. Eventually the most severe cases are sent to the Staff Medical Board and on occasion officers who are unable to return to work are medically discharged and a new officer is found to replace them.
Mr. Speaker, the current focus on ‘discipline’ and ‘sickness’ does little to build a performance culture that has its foundations on good ethical conduct and that approach is therefore inconsistent with the current policing strategy and ethos. Ethical decision making using the Service Decision Model is a standard business process. Part of that relates to the Code of Conduct and yet the connections between that code and the old discipline and sickness arrangements are tenuous. Additionally one of the main strategic intents contained in the BPS Policing Strategy 2015-2018 is to develop transformational leadership at all levels.
The old discipline and sickness arrangements take away opportunities for frontline supervisors and line managers to deal with unsatisfactory performance, misconduct and attendance management.
Mr. Speaker, research revealed that the Isle of Man recently concluded work to develop a Home Office based framework that was suitable for a small island police service. The work was undertaken by Home Office official Mr. Victor Marshall OBE and was implemented in April 2015.
In December 2015, Mr. Victor Marshall met with His Excellency the Governor and the Ministry of National Security; assembled a working group and also made presentations to stakeholders, including the Bermuda Police Association, on proposals to modernize the management of police performance and misconduct arrangements. There was broad agreement that the existing system should be modernized along similar lines to the reforms already implemented in England, Wales, Scotland and the Isle of Man. Valuable feedback was gathered from all local stakeholders that assisted Mr. Marshall in drafting the proposed policy, which will underpin the proposed legislative changes to the discipline, performance and appeals processes and amendments to the complaints system. Implementation of the modernized system will be enabled through the delivery of training for all supervisory ranks within the Bermuda Police Service.
Mr. Speaker, I am also pleased to advise Honourable Members that the total cost for the project (including training) is $38,060.00. Funding for these expenses is already within the BPS Budget for the financial year 2016-17. The BPS is not requesting any additional funding.
Mr. Speaker, whilst the proposed changes are focused on reforming the disciplinary system and introducing a performance management system, there is naturally a link to the police complaint system which will need to be considered to ensure all the arrangements interact where necessary.
The new arrangements are designed to focus more on learning and improvement rather than blame and punishment. This will be reflected in the police complaint system.
This legislation ‘ring fences’ discussions held as part of the local resolution process to ensure that officers will have the ability and confidence to openly discuss their actions with complainants with a view to resolving the majority of complaints without the fear of disciplinary action.
This will enable a greater emphasis on resolution of complaints, allow the opportunity for mediated resolutions and allow apologies where appropriate to be given at an early stage.
Mr. Speaker, the proposed changes to the present disciplinary procedures, the introduction of performance management procedures and changes to the complaint and appeals processes will result in the following benefits and outcomes:-
- Improvement in personal and professional standards – at an individual and an organisational level.
- Increased public and police (internal) confidence in the outcomes because they are quicker, more transparent and focused on modifying behaviour for the future.
- A proper balance between 'complainant' and officer interests where the rigours of policing are recognised and understood.
- A simplified process more likely to be understood and supported by officers and the public.
- A reduction in the human and monetary costs associated with a lengthy and adversarial process.
- Greater management engagement and ownership in the process, supporting the modern police service in fostering innovation and promoting initiative.
- Promote decision making and responsibility at the lowest level of management, thus inhibiting the inappropriate upward referral of conduct issues which is debilitating for all parties. Mediation has been shown to have a beneficial impact on the immediate parties involved and on organisations.
Mr. Speaker, The reforms advocated in this Bill and the concurrent Orders will modernise the arrangements for the management of misconduct and performance in the Bermuda Police Service and bring the processes in line with modern employment practice.
Thank you, Mr. Speaker